Conveyancing Newsletter ~ 'Vendor Disclosure'

What is Vendor Disclosure?

VENDOR DISLOSURE

Vendor disclosure is where the Vendor warrants as at the date of the contract and except as disclosed in the contract: the property is not affected by any adverse Affectations according to the Conveyancing Act 1919 - Conveyancing (Sale of Land) Regulation 2010 - Schedule 3 - Prescribed warranties:

1. A council Upgrade Order
2. Boundary encroachments
3. A railway proposal
4. A road proposal – including widening or realigning
5. Education proposal
6. Electricity line proposal
7. An interim heritage order

WHAT DOCUMENTS MUST A VENDOR ATTACH TO A CONTRACT OF SALE?

Vendors under a contract for the sale of land should attach all disclosure documents, conditions, warranties, along with disclosing, and describing any serious defects in the title of the property that the purchaser must accept, these documents include:

1. Zoning or planning certificates – section 149
2. Plans showing the position of sewer lines in relation to the land;
3. A copy of the property certificate and the official plan of the land such as a deposited (subdivision) plan, or if the property is a strata title, a copy of the whole strata plan;
4. Any documents creating easements, covenants, and any restrictions shown on the property certificate;
5. Notice conforming to the legal requirements in relation to the wording and print size outlining the rights available to the buyer, and also the cooling-off notice;
6. A certificate of home warranty insurance should also be attached to the contract by the owner, developer or builder.

If all the required documents are not included this failure may grant the buyer the right to recind/cancel the contract within the specified time period in NSW.

THE IMPORTANCE OF STATUTORY SEARCHES

Statutory Searches are the legal method of checking the above matters to ensure they will not affect a Purchaser's property (Home/Apartment/Block of Land).

The Statutory Searches Registry was set up to provide purchasers of land with an easy method of checking whether a property is affected by certain statutory restrictions which could not easily be discovered otherwise.

Search / Copy Document fees - Statutory charges

There are fees charged by the Dept to access Statutory Searches and have to be paid by the Conveyancer on behalf of the Purchaser, these fees are included in the overall conveyancing charges.

Many Purchasers are not aware of the need for Statutory Searches to be undertaken, nor understand the importance of them, but without sighting the documents on file it is impossible for a Conveyancer to verify the contents that provide the basis for the Vendor warranties to be tested before Settlement.

The role of the Conveyancer is to investigate the documents thoroughly as a Purchaser is entitled to rescind the Contract of Sale if one of these Vendor warranties are breached.

Statutory Searches provide a safety net for a Purchaser as a protection before Settlement against purchasing a property that, for example, may have the M4 proposed to cut across the front yard … in this case the Vendor has warranted there is not an issue, may not even know about it, or does not want to know about it! However, this could be the reason they are selling as they are aware there is a possibility their property is affected.

Brown and Brown Comments

It is always important to use an expert with many years of experience in this area to undertake the Statutory Searches as they know what to look for. In NSW all levels of government can acquire privately owned land for public purposes, they may acquire the whole property, part of a property or an interest in the property including easements for power lines, sewer or water. This will be revealed in the Statutory Searches and an expert knows what to look for.

However, this raises another important question what if this happens 10 years down the track – how can my Conveyancer protect me? At Brown and Brown Conveyancing we have a policy to protect the Purchaser in this event, it's called 'Title Insurance', every property purchase in our Practice is Titled Insured, Title insurance covers for risks AFTER Settlement and without notice to the Purchaser. We will cover Title Insurance in our next eNewsletter – November 2015.

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